by Marlies Spanjaard

Legal Analysis

Even if you haven’t heard the term “school-to-prison pipeline,” you probably know what it describes: The national trend by which students are funneled out of the public schools and into the juvenile and criminal justice systems. Instead of getting the education they need, generations of our state’s most vulnerable children have been pushed out of the classroom and into jail by schools with inadequate educational programs and zero tolerance disciplinary policies and practices. Suspension or expulsion from school can play a major role in pushing students into this pipeline. Unfortunately, these types of exclusions have increased dramatically in the last fifty years across the country. Massachusetts is no exception. Since the 1970s, schools have experienced a massive shift in how they respond to misbehavior in the classroom. The suspension rate for all students has nearly doubled, with students of color and students with disabilities incurring exclusion at an even greater rate. In Massachusetts, 17% of all incidents involved low-income Black or Latino students receiving special education, a rate that is estimated to be 10 times greater than their enrollment. See http://lawyerscom.org/wp-content/uploads/2014/11/Not-Measuring-up_-The-State-of-School-Discipline-in-Massachusetts.pdf.

In 2012, the Legislature enacted G.L. c. 71, § 37H¾, the first law to address school discipline reform in almost twenty years. The legislature sought to address distressingly high rates of exclusions and provide education services for children who are excluded.

Unlike the preexisting §§ 37H and 37H½, the new § 37H¾ provides procedural protections for students receiving both short term and long term suspensions – short term being under 10 days and long term being 10 days or more. Reflecting current research and best practices demonstrating that school exclusion is harmful to children and should be a last resort, § 37H¾: (1) requires that the decision maker, typically the school principal, exercise discretion, consider ways to reengage the student, and avoid any long term exclusion until other non-exclusionary alternatives have been tried; (2) prohibits a student’s exclusion for non-serious offenses from exceeding ninety days in a single school year; and (3) requires school districts to provide educational services to students who have been excluded from school for more than 10 days in order for them to make academic progress during the period of their exclusion. (Prior to the law, a non-special needs student excluded from school had no right to any educational services).

Now, four years into the implementation of § 37H¾, much still remains to be done to address the school to prison pipeline in Massachusetts. Massachusetts is heralded as having the best public schools in the nation, but access to this system is not equitable. Massachusetts schools continue to have high suspension and expulsion rates; racial disparities in exclusions continue to be higher than the national average; and the academic services offered to excluded students continue to vary greatly in quality. Massachusetts must do better, and this article suggests four ways that it can do so.

Provide Robust Procedural Protections for Students Facing Even Short Term Exclusions

First, § 37H¾ provides few procedural protections for students receiving short term suspension – defined as suspensions that are less than 10 days. Under the current law, students who are excluded for less than 10 days receive the opportunity to be heard, but there is no requirement that a parent be present. While the regulations require the principal to articulate the basis for the charge and to allow the student to present mitigating circumstances, this rarely happens. Often, a school official informs the student of his suspension while face-to-face, or by calling his parent. There is also no mechanism for appealing short term suspensions to the superintendent, so these determinations are often final.

Second, § 37H¾ regulates the school’s response to misbehavior that the state has defined as “non-serious exclusions.” Sections 37H and 37H½ in contrast, regulate the school’s response to misbehavior involving weapons, drugs, assault on educational staff, and any felony charges or convictions. Under the current statutory scheme, students who are being disciplined for allegations of non-serious behaviors under § 37H¾ have more robust protections delineated than students who are facing more serious allegations and consequences under §§ 37H and 37H½. The result in practice is that students facing the serious allegations are often not afforded the appropriate due process because it is not specifically delineated in the statute, although it is supported by the case law. This discrepancy in the statutory scheme is difficult to square with the research demonstrating that exclusion for both “non-serious” and “serious” offenses equally impacts student achievement. Requiring additional procedural protections does not prevent schools from implementing serious disciplinary consequences if the principal determines such consequences are warranted; they simply require the school to take steps to ensure that the offense occurred and was committed by the student being disciplined, and to hear the whole story including mitigating circumstances before imposing very serious and potentially life altering consequences. The law should be amended so that it is clear that students who are facing discipline under §§ 37H and 37H½ are entitled to all of the procedural protections received by students facing discipline under § 37H¾.

Limit The Authority Of Principals To Exclude Students For Out Of School Conduct

Third, the provisions of § 37H½ that allow exclusion of a student who has a pending felony charge or conviction upon the principal’s determination that the student’s continued presence would have a detrimental effect on the school’s general welfare sweeps too broadly. Although the layperson thinks of “felonies” as charges such as murder or manslaughter, § 37H½ has been used to exclude students charged with felonies reflecting normal adolescent behavior, such as riding in the backseat of a car that turned out to be stolen, fighting, or stealing an iPhone. The law gives principals the discretion to exclude a student based solely on the existence of a criminal charge. Principals are educators, not judges. They are not trained to make these determinations, and are often being asked to decide a student’s fate with limited information. In fact, the information a principal has is sometimes obtained in violation of student privacy protections as juvenile court proceedings are confidential.

Further, available data illuminate a serious problem with disparities in both race and disability status of the young people who face juvenile court charges. Massachusetts is one of the few states that allow this type of exclusion based solely on an allegation, despite the notion that one ought to be presumed innocent until proven guilty. Barring a complete removal of a principal’s ability to exclude based on a mere allegation, the statute should be amended to reflect the Department of Elementary and Secondary Education’s 1994 advisory, which said that § 37H½ should only be used for serious violent felonies. One approach could be to align § 37H½ with the Youthful Offender Statute.

The Youthful Offender statute, G.L. c. 119, § 54, allows prosecutors in circumstances where they feel a child has committed a serious offense to indict a child as a youthful offender, subjecting them to treatment as an adult. The statute applies to: youth who have previously been committed to DYS or are accused of causing or threatening serious bodily harm, or any charge involving a gun. If the statue focuses on the realistic threat to school safety, those who are alleged to have committed minor, non-violent crimes will be excluded at a lower rate. Furthermore, youthful offender cases are open to the public, which would allow everyone the opportunity to have the same information and wouldn’t incentivize the disclosure of confidential information currently protected by the juvenile court.

Limit The Definitions Of “Assault” And “Weapon” Under Section 37H.

Finally, § 37H should more clearly define the terms “assault” and “weapon.” Section 37H defines “weapon” in a way that explicitly includes guns and knives, but is otherwise vague. This has permitted principals to expand the definition of “weapon” to sometimes comical levels, such as a case in which a student was excluded under § 37H for possessing a paperclip. Similarly, “assault,” which also is not definite under § 37H, has sometimes been applied to include a “menacing” look from a student, unintentional contact with a teacher, or contact made with a teacher by a kindergartener during a tantrum.

Changing § 37H to clarify that all the elements of an “assault” must be present before expulsion, including specific intent and imminent harm, would lower exclusions. Currently, a broad spectrum of actions may be considered an “assault,” including unintentional acts or acts where there was no actual threat of harm. Further, the definition of “weapon” should be changed to match the federal definition of “dangerous weapon” under 18 U.S.C. § 930: A “device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2½ inches in length.” A school could still short term suspend students under § 37H ¾ for any item banned in their student handbook, but this change would limit the amount of students permanently excluded. These simple changes will reduce exclusions and keep students in the educational environment they so desperately need.

Conclusion

Section 37H¾ has significantly improved school discipline practice in Massachusetts, but much remains to be done. Some schools are excluding upwards of 50 percent of their student body each year. Students of color are still suspended at much higher rates than their white counter parts. By adopting the changes suggested above, Massachusetts can continue to improve on the progress already made. Massachusetts has long been at the forefront of progressive approaches to student misconduct, recognizing students as individual children in need of compassion and support rather than bad apples that need to be pushed out. By amending our laws to reflect the above changes, Massachusetts can continue to play a role as a leader in the field.

Marlies Spanjaard, MSW, JD, is the Director of the EdLaw Project, a statewide education advocacy initiative housed within the Youth Advocacy Division of the Committee for Public Counsel Services. She is a recognized expert on education law and school-to-confinement pathways. A passionate and dedicated advocate for vulnerable youth in Massachusetts, her work focuses on increasing education advocacy among the juvenile and child welfare bars to ensure children are supported to succeed in school and stay out of the court system.

by JMC

Viewpoint

An alumnus of the Boston Public Schools, who has chosen to be referred to as “JMC,” shares an experience with school discipline that led to the student’s eventual suspension.

During my senior year of high school, I was a part of my school’s “Senior Committee.” We planned events for our senior class. I was very passionate about these events; I cared about my school. I had a class period where the Senior Committee would plan our senior events. This was one of my favorite classes, and always kept me on my toes.

In November of my senior year, my class had been discussing methods to raise money for the senior class. We’d been discussing ways to raise money for a long time, and frankly, we felt like things weren’t exactly going the way it did for the senior class last year. We felt like we weren’t getting as much help from the administration as the administration gave to the class last year. We were a very outspoken class, and admittedly, things had gotten pretty tense in our classroom. We really disagreed with administration about how to plan our senior year.

Our teacher had a school administrator come to our class to help with this tension, but it did not help. Instead, we immediately got into a very heated discussion with a few of the students and the administrator. I felt myself getting angrier and angrier. I knew that I needed to take a break and calm down, so I decided to step out of the classroom.

I walked out of class and decided that I wanted to call my mom, because my mom can always help me calm down. When I called my mom, we made a plan for me to go see one of my teachers. This teacher had helped me when issues came up before, and I thought she would help me come up with a plan for Senior Committee. I began to walk towards my teacher’s classroom to see if she had time to talk with me, or if I could schedule a time to talk with her.

As I was walking to her classroom, a hall monitor started to follow me and asked me where I was going. I told her that I was going to see one of my mentors in the school, one of my teachers, to help me calm down. She told me I couldn’t do that and that she was going to call for back up.

That’s the last thing I remember before being completely surrounded by three staff members and two police officers. Things seemed to be escalating by the second. I didn’t know what to do, and I didn’t know what was going to happen to me. I remember constantly asking for them to back up and give me space because I felt beyond uncomfortable and anxious. I kept trying not to cry, but eventually I couldn’t help it anymore. I started crying and asking them to please leave me alone. I was so scared. I didn’t understand what had happened. I just wanted to see a teacher.

Then my teacher saw me. She ran down the hallway towards me, stepped between me and the police officers, and helped pull me past the police officers surrounding me. A school administrator told me I had to leave school right then, and they would let me know when I could come back. Then, one of the staff members surrounding me got in contact with my mother after they made me leave school. They told my mom that she had to come to school with me the next morning.

That next day I returned to school with my mother without knowing what is going on or what will happen. We were told to wait in the lobby, and that someone would be with us soon. I had never been in trouble like this before, and I had no idea what would happen. After a few minutes, we were sent to the Dean’s Office. I kept trying to explain to the dean what was happening, but he said he didn’t believe me. I asked to bring in my teacher who helped me get away from the police officers, but the dean wouldn’t let me get her. He told me I was suspended for ten days.

None of it made any sense to me. I’ve never been suspended before throughout my high school career, and I was so worried about what it would do to my college applications.

I felt so disrespected and belittled. To this day I don’t understand how one moment could lead to such a suspension. It all made me feel like they tried to make a show out of me. I knew this suspension wasn’t right, so I decided to fight it. I appealed the suspension, but I lost that appeal. I still wouldn’t give up, so I brought it to the state and Massachusetts agreed with me that my suspension was illegal. It was taken off my records before I graduated.

It felt so empowering, I’m happy I did my research, found a lawyer, and was able to fight this and win. I feel like our school systems take advantage of so many kids who just don’t know what their rights are or how to stand up for themselves. I couldn’t be one of those kids. I hope kids see this and know that if they aren’t in the wrong, you can stand up for yourself. Never give up and know your rights.

by Joseph N. Schneiderman

Case Focus

On August 23, 2016, the Supreme Judicial Court held that a student who was unlawfully suspended under the felony suspension statute, G.L. c.71, §37H1/2, did not need to seek review of her suspension to pursue the statutory tort of unlawful exclusion from public school, G.L. c.76, §16. Goodwin v. Lee Public Schools, 475 Mass. 280 (2016). This victory for students’ rights offers an opportunity for the Legislature to take action to further stem the flow of children in the school to prison pipeline.

The Case and Holding

Katelynn Goodwin was a senior at Lee Middle and High School in the Berkshires. In late December 2011, the principal suspended Ms. Goodwin under the felony suspension statute because the Lee Police suspected her involvement in a weapons theft. There was one obvious problem, however: a felony complaint never issued against Ms. Goodwin. Indeed, the superintendent admitted that Ms. Goodwin “perhaps not been charged yet.” A misdemeanor complaint ultimately issued against her in April 2012 for receiving stolen property. The school offered to lift the suspension but refused to allow Ms. Goodwin to graduate with her class. Ms. Goodwin graduated alone through an online program in 2013.

In December 2014, Ms. Goodwin sued for damages. A judge of the Superior Court dismissed Ms. Goodwin’s complaint on the grounds that she failed to appeal her suspension within five days pursuant to the felony suspension statute’s administrative process. Ms. Goodwin timely appealed and the SJC allowed her application for direct appellate review.

A unanimous Court reinstated Ms. Goodwin’s complaint and agreed that her right to tort recovery for unlawful exclusion constitutes a separate and distinct remedy from seeking reinstatement to school. The Court recalled that the statutory tort of unlawful exclusion has existed since 1845, although there have been relatively few recent cases analyzing the claims. The felony suspension statute, enacted in 1994, authorizes a principal to suspend when: (1) a student is charged with or convicted of a felony; and (2) the student’s continued presence would have a substantial detrimental effect on the general welfare of the school. A student could appeal the suspension to the superintendent-but the school committee does not review suspensions under the felony suspension statute. 475 Mass. at 284-286, compare G.L. c. 76, §17.

The Court reasoned that the felony suspension statute was only “triggered ‘[u]pon the issuance of a criminal complaint charging a student with a felony.’” Goodwin, 475 Mass. at 287 (quoting §37H1/2). Because the principal suspended Ms. Goodwin without any felony complaint issuing against her, the suspension violated Section 37H1/2 and Ms. Goodwin did not need to pursue any administrative review before seeking damages. The Court also rejected the notion that the felony suspension statute precluded any recovery in tort. Instead, the statute simply provides an “additional, immediate, review of a decision to exclude them from school, with the goal of readmission.” Id. at 288. Ms. Goodwin thus deserved her day in court.

Take-Aways

Goodwin marks an overdue moment of accountability for schools in the crisis of juvenile delinquency based school suspensions. Some felony charges decidedly warrant suspension to preserve school safety. SeeDoe v. Superintendent of Schools of Stoughton, 437 Mass. 1 (2002) (principal properly suspended a high school freshman charged with the rape of a primary school student on the same campus). There are many “felony” crimes, however, that should never warrant a suspension, absent aggravating circumstances.

Specifically, a felony constitutes “any offense punishable by imprisonment in the State Prison,” G.L. c. 274, §1. Therefore, a student who has a fake driver’s license faces suspension if the principal believes that having a fake license poses substantial detrimental effect to the general welfare of the school. G.L. c. 90, §24B (punishable by five years in state prison.) The sheer breadth of offenses that may trigger suspension has grave potential to thwart a child’s education and the command that allegedly delinquent children “shall be treated not as criminals but as children needing aid, encouragement of guidance.” G.L. c. 119, §53.

Between 1997 and 2011, principals suspended an average of more than 100 students per year under the felony suspension statute. Melanie Riccobene Jarboe, “Expelled to Nowhere”: School Exclusion Laws in Massachusetts, 31 B.C. Third World L.J. 343, 376 (2011). Courts tended not to review suspensions critically, despite “ample indication that principals [suspended] indiscriminately and [did not] carefully consider each case”, as the Commissioner of Education urged. Id. at 352, 360. Those suspensions inevitably flushed students into the school to prison pipeline. Id. at 349–51, 357, 365–69.

The review process is messy at best. A student or parent must request review in writing within five days.. Goodwin, 475 Mass. at 282, n.4. There is also no guidepost to judicial review, and certiorari becomes the only (default) option, which does not account for the best rehabilitative interests of a child. Doe, 437 Mass. at 5. An unlawful suspension may deprive a student of their future. See Commonwealth v. Mogelinski, 466 Mass. 627, 647-648 (2013), S.C., 473 Mass. 164 (2015). (“futurelessness” may overcome a child who endures a prolonged delinquency case.)

Finally, there is no freestanding right to counsel in suspension proceedings. And, unfortunately, “many parents often do not have the mindset, time, or means to pursue redress against the educational system…and the parents who do have the resources are often ostracized, frustrated, and unsuccessful.” Expelled to Nowhere, 31 B.C. Third World L.J. at 352.

Where Do We Go After Goodwin?

The Legislature has three concrete ways to build on Goodwin to spur continued accountability. First, the Legislature should limit suspensions only to when a student stands indicted as a youthful offender for a felony offense that involves infliction or risk of serious bodily harm. G.L. c.119, §54.

Second, as the Court implicitly suggested, the Legislature should create flexibility in the administrative review process and expressly establish procedures for judicial review to the Juvenile Court–which has a statutory mandate to further the best rehabilitative interests of children. G.L. c.119, §§1, 53.

Finally, the Legislature should create an independent right to appointed counsel in suspension hearings-with the right to commence the process for tort recovery for unlawful exclusion pursuant to the Massachusetts Tort Claims Act. These changes would ensure due process for students and further the goal of ending unlawful exclusions from education.

Joe Schneiderman has an appellate practice in Massachusetts and Connecticut with a particular affinity for and focus on juvenile delinquency and municipal law. Joe gratefully dedicates this article to: his mother Ro (who passed away three weeks after he filed Ms. Goodwin’s brief), as well as his dear friend, mentor, and teacher, Robert Kyff.